ILNews

Tug-of-war

Michael W. Hoskins
October 28, 2009
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Juvenile Justice

Bonaventura/PayneLake Superior Judge Mary Beth Bonaventura recently found herself doing what no other Indiana juvenile judge had done previously. She phoned the state’s Department of Child Services and asked Director James Payne, himself a former juvenile court judge, for permission to place a child outside Indiana. He reviewed the case and granted her request.

But that instance isn’t what bothers Judge Bonaventura or her colleagues throughout the state; it’s that they’re forced to seek permission at all.

An unexpected, last-minute change in a bill during the 2009 special session stripped away much of the juvenile judges’ decision-making discretion for placements outside Indiana, and now all three government branches are reacting to how and why that happened and whether it strengthens or hinders Indiana’s juvenile justice system.

“This used to be a judicial decision, but now it’s an executive department decision,” said Indiana Court of Appeals Chief Judge John Baker, who recently sat as a member of the legislative Commission on Courts as it examined this issue. “I wasn’t aware it was broken, or at least that there was a discussion outside the judiciary that it was broken.”

Special session surprise

With PL 182-2009(ss), Section 387, lawmakers amended Indiana Code §31-37-19-3(f) to require DCS recommendation or approval for any out-ofstate placement, or else the county must pay for placement. The change came after the Indiana Supreme Court in April ruled against the state agency and gave more deference to juvenile judges in making placement decisions when there’s a dispute about who should pay. Taking its case directly to the General Assembly, the DCS asked the lawmakers to tweak state statute and give it more control.
 

It's not the rightThe change happened without public discussion and surprised the judges, who were still reeling from sweeping statutory changes made a year earlier giving the DCS more authority over juvenile justice decisions and shifting some funding to the state.

The gamut of issues came up during the two Commission on Courts meetings in October, where all sides came together to discuss the issues and some even pointed out potential constitutional issues that could arise.

“It’s arrogant for judges to say or think that only judges can make those decisions and not the executive branch, but our state’s policy has been to leave it up to the judges and not have them second-guessed by the executive branch,” Chief Judge Baker said, making an observation in his role filling in for Chief Justice Randall T. Shepard.

Speaking about her experience in Lake County, Judge Bonaventura said all placements are about what’s best for children and families, and the judges work to keep juveniles inside the state as much as possible, as long as needs are met. But she doesn’t like the idea of singling out and treating juveniles differently based on placement. Doing so, she said, raises potential constitutional concerns â?? a separation of powers violation and questions about how the unrelated juvenile justice provision was lumped into a massive budget bill.

John PayneTippecanoe Juvenile Judge Loretta Rush, who chairs the Indiana Supreme Court’s Juvenile Justice Improvement Committee, told the interim legislative panel that all of the recent statutory changes negatively impact their ability to do their job effectively.

“These decisions (that judges make) weigh heavily on us, and it sets our juvenile justice system backward to take away this judicial discretion and place it with a state executive agency,” she said.

Opposing sides

Several commission members voiced their frustration about the last-minute change and said they didn’t know about the provision until it became law. After hearing from a handful of unhappy juvenile judges, the committee voted overwhelming to recommend that the General Assembly repeal that provision during the upcoming session.

Rep. Matt Pierce, D-Bloomington, called the revision a “fiscally-based decision that wasn’t thought through.” Other lawmakers agreed and voiced similar concerns, saying they trusted the decisions Indiana juvenile judges have made and that there hasn’t been any rash of out-of-state placements about which the state should be concerned.

Chief Judge John Baker“I was totally unaware this was in the budget, and there ought to be a do-over,” said Sen. Tim Lanane, D-Anderson. “This goes very much to the independence of our judiciary and who’s in the best position to decide what’s in the best interests of a child. I hope there would be extensive debate on this.”

The DCS director defended the law change that he’d specifically asked for during the special session, and Payne said the rationale is focused more on best practices than money.

“I’m not here to talk about money, but money is a part of this,” he told committee members. “We have the treatment programs here to adequately serve their needs, and keeping children close to home is a best practice and something this state can and should support.”

The agency’s main priority is to keep children close to home and “engage families” as much as possible, Payne said. Outof-state placement is used as a last resort, and research shows Indiana has the capacity to keep virtually every child here.

Nationally, many states are turning away from out-of-state placements, and more than half have limited them in order to keep juveniles close to home, Payne said. He presented lawmakers with a 2008 report from the non-profit group known as IARCCA, which describes itself as an Association of Children & Family Services, saying Hoosier judges have many in-state placement options and there’s a 30 percent bed capacity that remains open. He said Indiana could use existing resources to keep virtually every child within the state and serve them adequately.

But judges disputed the report, some saying that it doesn’t take into consideration that those facilities often decline to take a particular juvenile when they are asked to do so by a judge.

The decissionsDespite Payne’s insistence that judges can still make out-of-state placements without DCS approval, juvenile judges say their hands are tied because it’s a “pay to place” setup: If they don’t consult the DCS first, then the cash-strapped counties would have to find money to pay for the placement. That is difficult in tough economic times, but especially since another provision of the 2008 law change took away and transferred to the state the local county fund previously used to pay for those placements and services.

Judge Rush said she recently asked her county council to set aside money and devote a specific line item in the budget to use when the juvenile court disagrees with the DCS, but the county refused to do that.

St. Joseph Juvenile Judge Peter Nemeth criticized how the DCS operates and continues getting more authority to call the shots on juvenile offenders, delinquents, and Children In Need of Services. The agency, he said, often seems as though it’s metaphorically throwing darts at a dartboard without knowing any particulars about a child or family, and disregards recommendations by the key players and even its own local caseworkers.

“It’s not the right thing to do, and it certainly interferes with judges doing their job,” he said. “They want to look at a piece of paper to make decisions. ... Is that the way we want our justice system to operate for our kids and their families?”

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  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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